To recap our story, Charles and Donna found their young daughter with her boyfriend after curfew, and a yelling match ensued in front of the family home. When James, the boyfriend, called the police out of fear for an escalating situation, the officers who arrived on scene ended up taking James himself into custody for drugs they found in his vehicle. After the chaos subsides, Brianna runs away from the family home, incurring scratches on her face as she does so. In panic, not knowing where their daughter has gone, Donna and Charles call the police.
The police had already been out to the house once, and no one was in a very good mood when they returned. When they see the abrasions on Brianna’s face, they immediately assume that someone put them there, and mostly based on their prior interaction, they assume that someone is Charles, and they take him into custody. Will he now be condemned to a period of hard labor at the county jail and branded as a domestic batterer for the remainder of his life?
22 states have zero tolerance, mandatory arrest policies in domestic violence situations. Illinois does not have a statewide mandatory arrest law, but most law enforcement agencies in Chicagoland do have such policies. So, if the police respond to a domestic disturbance call and there is some evidence of physical injury, they are required to make an arrest, and in nearly all cases, they arrest the male participant in the conflict. These laws were controversial when they were passed, and they remain controversial today.
Zero Tolerance Policies
The idea behind a mandatory arrest policy is a solid one because it stands to reason that if the police remove the probable abuser, they completely defuse the domestic violence bomb, at least for the time being. However, the policies have some unintended consequences. For example, some recent evidence suggests that abused women do not call the police in mandatory reporting jurisdictions because they fear reprisals. There are many variables, such as race, ethnicity, and economic status to consider, and the sample size for the study was rather small, but the results may be enough to reinvigorate the zero-tolerance debate.
Perhaps more significantly, zero tolerance policies effectively transform police officers into jurors, a role that they are probably not qualified to fill. Under the state’s domestic battery law, the alleged victim need not suffer a physical injury to constitute abuse because “physical contact of an insulting or provoking nature with any family or household member” is sufficient to support a conviction.
A first offense under this section is a Class A misdemeanor; a subsequent offense is a Class 4 felony. If there are aggravating circumstances, such as the presence of a child or the use of a weapon, the penalty may be higher.
Mandatory reporting policies mean that some innocent people, such as Charles, will be jailed alongside the vast majority of alleged assailants who, at least arguably, committed a criminal offense. However, this issue also means that these cases are easier to defend at trial because the prosecutor’s case is sometimes hopelessly weak and entirely dependent upon the alleged victim’s testimony.
Domestic Violence and Divorce Proceedings
Since the burden of proof is lower and the interests are different (the best interests of the children as opposed to the protection of society), domestic violence cases often have a tremendous effect on divorce cases.
The allegation alone is probably enough to significantly weaken a custody request, and a finding of liability is probably enough to sink the case entirely.
However, in terms of visitation, the effect is usually more limited. There is a strong presumption in the law that it is in the best interests of the children for them to have consistent and meaningful contact with both parents. For that reason, judges are quick to order anger management classes, neutral exchange points, and perhaps supervised visitation, but extremely hesitant to significantly limit visitation time for a convicted abuser.
Contact Tenacious Attorneys
In both criminal and family court, an aggressive defense to domestic battery allegations is often the only way to preserve your rights. For a confidential consultation with an experienced criminal law attorney in Schaumburg, contact Glasgow & Olsson.
(image courtesy of Rene Bohmer)